New Accessibility Standards Affecting Employment Now In Force

The Ministry of Community and Social Services newest Regulation under the Accessibility for Ontarians with Disabilities Act (“AODA”), the Integrated Accessibility Standard (“Regulation”), is now in force. This Regulation combines three accessibility standards, Employment, Information and Communication and Transportation Standard and will impact Employers across Ontario.

Under the Regulation, all organizations covered by the Regulation (including large and small designated public sector organizations, large and small organizations) will be obligated to have accessibility policies, and train employees, volunteers, and all other persons who provide goods or services on accessibility standards as well as the Human Rights Code.

The timeline for compliance for the Standards affecting Employment (“Employment Standards”) range from January 1, 2013 for designated public sector organizations to January 1, 2017 for small organizations. Large private and not for profit organizations must reach compliance by January 1, 2016.

The Regulation signifies a shift in the provision of workplace accommodation for employees with disabilities. It imposes additional obligations on employers that were not required under the Human Rights Code.

Below is a summary of some of the specific requirements imposed by the Employment Standards:

Every employer is required to tell its employees and the public of accommodations available for applicants with disabilities.

During the recruitment process, employers shall advise applicants that accommodations of the materials and processes to be used are available and if accommodations are requested then the employer shall consult with the applicant on their accommodations needs.

Upon making offers of employment, employers shall advise the successful candidate of their accommodation policies in the workplace.

Every employer shall tell all employees (current and new employees) of accessibility policies for employees with disabilities in the workplace and of
any updated policies or changes to any policy.

Upon request the employer shall provide an employee with accessible formats and communication supports for information that is needed to perform their job and information that is available to all employees. The employer shall also consult with the employee with respect to the suitability of the accessible format and communication supports.

Employers, who are aware of a disability which requires emergency response information, shall provide those employees with disabilities, as soon as practicable, with individualized emergency response information. If the employee requires assistance then the employer, with the employee’s consent, will designate a person to assist the employee. This information must be reviewed when the employee moves to a different location, or when the employee’s accommodation needs and plans are reviewed and when the employer reviews its general emergency response policies. Unlike other deadlines, this requirement must be met by January 1, 2012.

Employers, other than small organizations, shall develop and have a written process for the development of documented individualized accommodation plans. The process shall include:

The manner in which the employee can participate in the development of the individualized accommodation plan.

The means by which the employee is assessed.

The manner in which the employer can request an outside medical or other expert to assist the employer in determining accommodations and fulfilling those obligations.

The manner in which a union representative or other representative from the workplace can participate in the development of this plan.

The steps taken to protect the privacy of the employee and their information.

When the plan will be reviewed and updated and how the review and update process will be done.

When an individual accommodation plan is denied, the reasons will be given to the employee for that denial.

The means of providing the accommodation plan in an accessible format for the employee.

That individualized accommodation plans shall, if requested include:

Any accessible formats and communications supports provided; any individualized workplace emergency response information, if required; and any other accommodation that is being provided.

Employers (except small employers) are required to develop, document and have a return to work process for individuals with disability-related absences and accommodations. The return to work process shall outline the steps the employer will take and shall use documented, individualized accommodation plans – as set out above. However, this process does not replace or override any other return to work process under any other statute.

Employers who use performance management processes, who provide career development and advancements or who use redeployment, shall take into account the accessibility needs and accommodation plans of Employees with disabilities when applying these processes.

In addition to setting out requirements, the Regulation also states that administrative penalties can be ordered for contravention of the Regulation. The amount of such administrative penalties will vary, depending upon the size of the organization, the history of the organization and the severity of the
contravention. Penalties may range up to a maximum of $100,000 daily for a corporation or $50,000 daily for an individual or an unincorporated organization.

For more specific information on the application of the AODA or the new Regulation, including assistance drafting individualized accommodation plans and
return to work processes consult with your Mathews, Dinsdale lawyer.